MAKANJI MAVJI Vs. BHUKHANDAS NAGARDAS

JUDGEMENT

(1.) This is an application under Section 25 of the Provincial Small Cause Courts Act asking us to set aside an order made by the First Class Subordinate Judge of Surat on June 30, 1923, in the following circumstances. One Bhukhandas Nagardas had obtained a decree against one Merwanji Rustomji Mody for Rs. 420 and costs. The plaintiff applied for execution of the decree against the defendant by his arrest. Notice was issued upon the judgment-debtor calling upon him to show cause why he should not be arrested in execution of the decree against him. As the judgment-debtor did not appeal to show cause, the Court, on January 19, 1923, made an order for his arrest. In pursuance of the warrant the judgment- debtor was arrested and brought before the Subordinate Judge. On February 27, 1923, an order was made on an application by the judgment-debtor under Section 55(4) of the Civil Procedure Code that he wanted a month's time to make an application to be declared an insolvent. The Judge made an order that on the judgment, debtor giving security for Rs. 450 he should be released. The present petitioner then came forward and passed a bond in the following terms:-- I Makan Mavji residing at Katargaon with my will and for me and my heirs and assigns make a contract with the Court that the defendant Merwanji Rustomji will appear in Court when called upon in any proceeding upon the application or upon the decree in execution and that he will give an application within the abovementioned period and if he does not appear or does not make an application, I, my heirs and assigns, bind ourselves to give Rs. 500 by its order to the Court.

(2.) Accordingly the judgment-debtor was released. But he failed to apply to be declared an insolvent within a month from the date of the order. The Court then on its own motion made an order on the original Darkhast to the following effect:-- Insolvency application not presented, re-issue warrant of arrest.

(3.) The judgment-creditor had notice of this order, so on April 4, 1923, he made an application to the Court to the effect that the application for insolvency not having been given in time, the surety had become liable, and prayed that the warrant should not be issued against the judgment-debtor, but that the surety should be called upon to pay the amount of the decree. Before any order could be passed on that application the judgment-debtor died on May 17, 1928. Accordingly the judgment-creditor continued his application against the surety. The Court granted the application and directed execution against the surety to issue for the sum remaining due under the decree.